Dietman v Karpany

[2023] SASCA 52

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DIETMAN v KARPANY

[2023] SASCA 52

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

25 May 2023

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES - NATIVE TITLE - PROOF AND EVIDENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DEFENCES

PRIMARY INDUSTRY - FISH - SHELLFISH - ABALONE

The appellant (a public officer of the Department of Primary Industries and Regions South Australia and the Informant in these proceedings) appeals against the decision of a magistrate acquitting the respondent of two counts of possession of an aquatic resource of a prescribed class in contravention of s 72(2)(c) of the Fisheries Management Act 2007 (SA).

At trial, the respondent admitted the essential elements of the offences as alleged but sought to defend the charges by relying upon a native title right to fish for abalone under s 211(2) of the Native Title Act 1993 (Cth). The appellant accepted that if s 211(2) of the Native Title Act operated in respect of the respondent’s conduct, then the prohibition in s 72(2)(c) of the Fisheries Management Act had no application in relation to that conduct. 

Both parties accepted that the respondent carried an evidential onus as to the conditions necessary for the operation of s 211(2), but there was a dispute as to which party carried the ultimate or persuasive onus in relation to that section.

The Magistrate found that the respondent had discharged his evidentiary onus, but that the evidence was not sufficient for the respondent to establish the operation of s 211(2) on the balance of probabilities. His Honour also held that if the prosecution bore the persuasive onus to negate the operation of s 211(2) beyond reasonable doubt, it had not done so.

The Magistrate held that the appellant bore the persuasive onus to disprove the operation of s 211(2) beyond reasonable doubt; and that because the appellant had not done so, the respondent was not guilty on both counts.  

The appellant appeals the respondent’s acquittals on the basis that the Magistrate erred in holding that the appellant bore the persuasive onus to disprove the conditions for the operation of s 211(2) beyond reasonable doubt.

Held (per the Court), allowing the appeal:

1.The respondent bore the persuasive onus in relation to the conditions necessary to establish the operation of s 211(2), and was required to prove these matters on the balance of probabilities. On the findings of the Magistrate, he did not do so.

Acts Interpretation Act 1954 (Qld) s 36; Commonwealth of Australia Constitution Act 1900 (Cth) ss 92, 109; Criminal Procedure Act 1921 (SA) s 56; Fisheries Act 1994 (Qld) ss 14, 84; Fisheries Management Act 1994 (NSW); Fisheries Management Act 2007 (SA) s 72; Judiciary Act 1903 (Cth) ss 79, 80; Justices Act 1886 (Qld) s 76; Magistrates (Summary Proceedings) Act 1975 (Vic) s 168; Native Title Act 1993 (Cth) ss 211, 223, 233; Sea Fisheries Regulations 1962 (Tas); Senator Chamarette, Senate Hansard, 21 December 1993, referred to.
Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Breen v Sneddon (1961) 106 CLR 406; Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Clubb v Edwards (2019) 267 CLR 171; Commonwealth of Australia v Yarmirr (2001) 208 CLR 1; Czerwinski v Hayes (1987) 47 SASR 44; Derschaw v Sutton (1996) 17 WAR 419; Dillon v Davies (1998) 8 Tas R 229; Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594; Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23; He Kaw Teh v The Queen (1985) 157 CLR 523; Jayasena v R [1970] AC 618; Karpany v Dietman (2013) 252 CLR 507; Mabo v State of Queensland (No 2) (1992) 175 CLR; Maloney v The Queen (2013) 252 CLR 168; Mason v Tritton (1994) 34 NSWLR 572; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352; R v Youssef (1990) 50 A Crim R 1; R v Zecevic [1986] VR 797; Re Day (2017) 91 ALJR 262; Sansbury v State of South Australia [2023] FCA 196; Stevenson v Yasso [2006] 2 Qd R 150; Unions NSW v New South Wales [2023] HCA 4; Vines v Djordjevitch (1955) 91 CLR 512; Wanganeen v Dietman (2021) 139 SASR 170; Western Australia v The Commonwealth (1995) 183 CLR 373; Western Australia v Ward (2000) 99 FCR 316; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Woolmington v Director of Public Prosecutions [1935] AC 462, considered.

DIETMAN v KARPANY
[2023] SASCA 52

Court of Appeal – Criminal:    Livesey P, Doyle and Bleby JJA

1. THE COURT: This is a prosecution appeal from the decision of a magistrate acquitting the respondent of Counts 3 and 4 of an Information dated 25 October 2017, being two counts of possession of an aquatic resource of a prescribed class in contravention of s 72(2)(c) of the Fisheries Management Act 2007 (SA). Count 3 alleged possession of 153 greenlip abalone. Count 4 alleged possession of 118 undersized abalone.

2. The appellant is a public officer from the Department for Primary Industries and Regions South Australia, and the Informant in the proceedings below.

3. It was not in dispute at trial that the elements of each offence had been proved against the respondent. The respondent admitted being in possession of a catch bag containing 153 greenlip abalone, and that 118 of them were undersized. However, the respondent sought to defend the charges against him by relying upon a native title right to fish for abalone under s 211(2) of the Native Title Act 1993 (Cth).

4. The appellant accepted at trial that if s 211(2) of the Native Title Act operated in respect of the respondent’s conduct, then the prohibition in s 72(2) of the Fisheries Management Act had no application in relation to that conduct. There was a dispute between the parties, however, as to the burden of proof in relation to the operation of s 211(2) of the Native Title Act.  Both parties accepted that the respondent carried an evidential onus as to the conditions necessary for the operation of s 211(2), but they were in dispute as to which party carried the ultimate or persuasive onus.

5. The respondent argued that the native title ‘defence’ upon which he relied was analogous to other defences commonly relied upon in criminal proceedings.  He accordingly accepted that he bore an evidentiary onus in relation to the conditions for the operation of s 211(2), but argued that once that evidentiary onus had been discharged, the persuasive onus fell upon the appellant to disprove those conditions beyond reasonable doubt.

6. The appellant, on the other hand, rejected this analogy with defences ordinarily raised in criminal proceedings.  He contended that the respondent bore not only the evidential onus, but also a persuasive onus to prove the conditions for the operation of s 211(2) on the balance of probabilities; and that, even if the respondent had satisfied his evidentiary onus, which was not conceded below, the respondent had not satisfied his persuasive onus of proving those conditions on the balance of probabilities.

7. The Magistrate found, and it is no longer in dispute, that the respondent discharged his evidentiary onus to prove the conditions for the operation of s 211(2) of the Native Title Act.  His Honour also found, however, that the evidence was not sufficient for the respondent to establish the operation of s 211(2) on the balance of probabilities.  At the same time, the Magistrate considered, and indeed the appellant conceded, that if the prosecution bore the persuasive onus, it had not negated the operation of s 211(2) beyond reasonable doubt.

8. The Magistrate was accordingly required to determine which of the parties bore the persuasive onus.  His Honour held that the appellant bore the persuasive onus to disprove the operation of s 211(2) beyond reasonable doubt; and that because the appellant had not done so, the respondent was not guilty of Counts 3 and 4 on the Information. 

9. The appellant appeals the respondent’s acquittals on Counts 3 and 4 on the basis that the Magistrate erred in holding that the appellant bore the persuasive onus to disprove the conditions for the operation of s 211(2) beyond reasonable doubt.

   Factual background

10. For the reasons outlined, this appeal turns upon the issue of who bore the persuasive onus in relation to the operation of s 211(2) of the Native Title Act in the context of criminal proceedings alleging contraventions of s 72(2)(c) of the Fisheries Management Act.  That is a legal issue that does not require any consideration of the factual issues that arose at trial.  The summary of the factual background which follows is intended merely to provide some context for the legal analysis which follows.

11. On the afternoon of 7 March 2017, the respondent and his two co-defendants below (Mr Power and Mr Bilney) were in the water at Cockle Beach, Yorke Peninsula.  The area is acknowledged to be within the traditional land and waters of the Narungga people.  The respondent and Mr Power are Narungga men, and Mr Bilney’s wife is a Narungga woman.

12. The three men were observed by fisheries officers to be snorkelling in the water for about three hours.  At around 6.00pm, the respondent emerged from the water, carrying snorkelling equipment and a catch bag containing abalone.  Mr Power and Mr Bilney soon also emerged from the water.  They were carrying snorkelling equipment, and whilst not carrying catch bags, two further catch bags containing abalone were later located in the water in the area where they had been snorkelling.

13. There was no dispute that the respondent was in possession of the first catch bag, and that it contained 153 greenlip abalone, of which 118 were undersized.  In discussions with the fisheries officers after he emerged from the water, he claimed that he was exercising his native title rights as a Narungga man by fishing and taking abalone for non-commercial purposes.

14. Each of the three men were charged with offences under s 72(2)(c) of the Fisheries Management Act relating to their possession of the abalone in the three catch bags.  Counts 1 and 2 alleged the joint possession by the three defendants of the abalone in all three catch bags, and were not made out.  Counts 3 and 4 charged the respondent with possession of the abalone in the first catch bag, and Counts 5 to 8 contained equivalent allegations against Mr Power and Mr Bilney in relation to the abalone in the second and third catch bags.

15. Mr Power and Mr Bilney did not raise any native title ‘defence’ and were convicted of Counts 5 and 6, and Counts 7 and 8 respectively.

16. Whilst acknowledging that the basic elements of the s 72(2)(c) offences the subject of Counts 3 and 4 had been made out, the respondent relied upon a native title ‘defence’ under s 211(2) of the Native Title Act.  In support of that defence, the respondent gave evidence about his own experiences fishing as a Narungga man, what he had been taught about fishing by his father, and their custom of sharing a catch with his family.  While he did not give any broader evidence as to the existence or content of Nurungga laws or customs in relation to fishing for abalone, he did adduce some (albeit relatively general) evidence about these matters from an anthropologist, Mr Graham.

17. As explained later in these reasons, the Magistrate held that whilst the evidence adduced by the respondent was sufficient to discharge his evidentiary onus in respect of his native title ‘defence’, it was not sufficient to establish that defence on the balance of probabilities.  However, this did not ultimately matter as his Honour held that the prosecution bore the persuasive onus, and hence was required to negate the existence of that defence beyond reasonable doubt.  The prosecution did not do so, and so the respondent was acquitted of Counts 3 and 4.

    Relevant provisions of the Fisheries Management Act

18. As mentioned, Counts 3 and 4 alleged offences under s 72(2)(c) of the Fisheries Management Act.  That subsection is found within Part 7 of the Act, which is headed ‘Offences’ and contains a number of offence provisions.

19. Section 72 makes it an offence to sell, purchase or possess aquatic resources in certain circumstances:

    72—Sale, purchase or possession of aquatic resources without authority prohibited

    (1) Subject to this section, if a person sells or purchases an aquatic resource taken in waters to which this Act applies but not under an authority, the person is guilty of an offence.

    Maximum penalty:

    (a)     in the case of a body corporate—

    (i) if the offence involves the sale or purchase of fish of a priority species—$250 000;

    (ii)     in any other case—$100 000;

    (b)     in the case of a natural person—

    (i) if the offence involves the sale or purchase of fish of a priority species—$50 000 or imprisonment for 4 years;

    (ii)     in any other case—$20 000 or imprisonment for 2 years.

    (2) Subject to this section, if a person sells or purchases, or has possession or control of—

    (a)     an aquatic resource taken in contravention of this Act or a corresponding law; or

    (b)     an aquatic resource of a protected species; or

    (c)     an aquatic resource of a prescribed class,

    the person is guilty of an offence.

    Maximum penalty:

    (a)     in the case of a body corporate—

    (i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$250 000;

    (ii)     in any other case—$100 000;

    (b)     in the case of a natural person—

    (i) if the offence involves the sale or purchase of fish of a priority species or the possession or control of fish of a priority species for the purposes of sale—$50 000 or imprisonment for 4 years;

    (ii)     in any other case—$20 000.

    (3)     In proceedings for an offence against subsection (2)—

    (a)     if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control, it will be presumed, in the absence of proof to the contrary, that the person had that aquatic resource in his or her possession or control for the purposes of sale;

    (b)     if it is proved that a person had a commercial quantity of an aquatic resource of any species in his or her possession or control in circumstances in which it is reasonable to presume that the aquatic resources were taken by that person in waters to which this Act applies, it will be presumed, in the absence of proof to the contrary, that the person took the aquatic resources from such waters.

    (4) Regulations made for the purposes of subsection (2)(c) may prescribe a class of aquatic resource comprised of or including an aquatic resource taken elsewhere than in waters to which this Act applies.

    (5) In proceedings for an offence against this section, it is a defence if the defendant proves—

    (a) —

    (i)      that the aquatic resources to which the proceedings relate—

    (A) were purchased from a person whose ordinary business was the selling of such aquatic resources; and

    (B)     were purchased in the ordinary course of that business; or

    (ii) that the defendant did not take the aquatic resources in contravention of this Act or a corresponding law; and

    (b)     that the defendant did not know, and had no reason to believe, that the aquatic resources were (as the case may be)—

    (i) aquatic resources taken in waters to which this Act applies but not under an authority; or

    (ii) aquatic resources taken in contravention of this Act or a corresponding law; or

    (iii)    aquatic resources of a protected species; or

    (iv)    aquatic resources of a prescribed class.

    (6) In proceedings for an offence against subsection (2) relating to aquatic resources of a class prescribed for the purposes of that subsection, if it is proved—

    (a)     that the defendant was not—

    (i) the holder of an authority authorising the taking of aquatic resources of that class; or

    (ii)     a registered fish processor; and

    (b)     that the defendant sold or purchased or had possession or control of more than the prescribed quantity of aquatic resources of that class,

    the offence is proved unless the defendant establishes the defence under subsection (5).

    (7) Subsection (2) does not apply where a person has possession or control of an aquatic resource of a protected species pursuant to a permit issued by the Minister.

    (8) The Minister must not issue a permit for the purposes of subsection (7) unless of the opinion that it is in the public interest to do so.

20. Focussing upon s 72(2)(c), there is no dispute that the abalone the subject of Counts 3 and 4 were, pursuant to regulations in force at the time, an aquatic resource of a prescribed class.

    Section 211 of the Native Title Act

21. Section 211 of the Native Title Act allows native title fishing rights to be enjoyed unencumbered by State licensing laws in certain circumstances. In particular, s 211(1) sets out four conditions that must be satisfied in order for s 211(2) of the Native Title Act to apply:

    211 Preservation of certain native title rights and interests

    Requirements for removal of prohibition etc. on native title holders

    (1) Subsection (2) applies if:

    (a)     the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and

    (b)     a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and

    (ba)   the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and

    (c)     the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

22. If s 211(2) of the Native Title Act applies, it relevantly provides that the relevant State law does not prohibit or restrict native title holders from carrying on an activity, or from gaining access to the land or waters for the purpose of that activity, where two further conditions are met (namely, where the native title holder is carrying on the activity for the purpose of satisfying their personal, domestic or non-commercial communal needs, and in exercise of their native title rights):

    Removal of prohibition etc. on native title holders

    (2)If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so:

    (a)     for the purpose of satisfying their personal, domestic or non-commercial communal needs; and

    (b)     in exercise or enjoyment of their native title rights and interests.

    Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.

23. Under s 211(3), the list of activities which may constitute a ‘class of activity’ for the purposes of s 211 includes hunting, fishing and gathering, being what may be described as usufructuary rights which are incidents of native title.

24. To summarise, if the four conditions in ss 211(1)(a)-(c) are made out, then s 211(2) applies; and if the two further conditions in ss 211(2)(a) and (b) are also made out, then s 211(2) operates so that the State law does not prohibit or restrict the native title holder from engaging in the relevant activity. In a case such as the present, the native title holder has a ‘defence’ to an allegation of contravention of the State law.

1. The concept of ‘native title rights and interests’ invoked in ss 211(1)(a) and (2)(b) is defined in s 223 to mean the rights and interests acknowledged and observed by Aboriginal peoples and recognised by the common law in accordance with Mabo v State of Queensland (No 2).[1]  It includes hunting, gathering and fishing rights and interests:

   [1]     Mabo v State of Queensland (No 2) (1992) 175 CLR 1; including, under s 233(3), any statutory recognition of those rights and interests.

   223  Native title

   Common law rights and interests

   (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

   (a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

   (b)     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

   (c)     the rights and interests are recognised by the common law of Australia.

   Hunting, gathering and fishing covered

   (2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

2. In Wanganeen v Dietman,[2] the conditions for the operation of s 211(2) contained in ss 211(1)(b), (ba) and (c) (being the conditions that turn upon the characterisation of the relevant State law) were satisfied. In addressing the content of the remaining conditions for the operation of s 211(2), the Full Court noted that the conditions in ss 211(1)(a) and 211(2)(b) imported the elements of native title in s 223, which in turn imported the elements of native title at common law. Bearing this in mind, the Court summarised these remaining conditions to the operation of s 211(2) as requiring satisfaction that: [3]

   1.traditional laws and customs acknowledged and observed by an Aboriginal community extending to the right to fish were exercised by that community immediately before the Crown claimed sovereignty over the territory;

   2.the defendant is an indigenous person and is a biological descendant of that original Aboriginal community;

   3.the defendant and the intermediate descendants had, subject to certain qualifications, continued uninterrupted to observe the traditional laws and customs;

   4.members of the Aboriginal community have communal, group or individual rights and interests under the traditional laws and customs;

   5.the Aboriginal community by those laws and customs have a connection with the land or waters;

   6.the defendant’s conduct in fishing for and being in possession of the abalone was an exercise of those traditional laws and customs; and

   7.the defendant’s conduct in fishing for and being in possession of the abalone was for the purpose of satisfying the personal, domestic or non‑commercial communal needs of the defendant or fellow members of the Aboriginal community.

   [2]     Wanganeen v Dietman (2021) 139 SASR 170.

   [3]     Wanganeen v Dietman (2021) 139 SASR 170 at [69] (the Court), drawing upon the reasons of Kirby P in Mason v Tritton (1994) 34 NSWLR 572 at 584, albeit acknowledging that, whilst useful, this may not be a definitive statement of the matters that must be established.

3. Section 211 of the Native Title Act is not referred to in any explanatory memorandum issued by the Commonwealth in relation to the Native Title Act. It was apparently introduced as an amendment when the legislation was in the Senate.  The Senator moving the amendment described the purpose and function of the amendment in protecting Aboriginal rights to hunt, fish and gather in the following terms:[4]

   Amendment 33B to insert the new clause 196A seeks to ensure that Aboriginal people are not prevented from exercising their inherent native title rights and interests in circumstances where state and Commonwealth laws allow others to engage in those activities.  The amendment does not prevent a state or the Commonwealth from prohibiting a native title activity where it is necessary, for example, for genuine conservation reasons, but it does prevent them from doing so while allowing others to engage in that same activity.  In other words, the amendment prevents laws from having a discriminatory operation on Aboriginal people whose rights to conduct certain activities can sometimes be traced back many thousands of years.  The clause is particularly important for those Aboriginal and Torres Strait Islander people who may already be largely dispossessed and whose native title rights are limited to particular activities or resources.  Without it there could be a creeping process of dispossession as native title rights are regulated out of existence, one by one, while other people remain free to carry out those same activities.  The clause is critical in protecting Aboriginal rights to hunt, fish and gather where the impact of the activity is not such as to require its non-discriminatory prohibition.  The clause is limited in its operation to native title rights in relation to hunting, fishing, gathering or cultural or spiritual activities where those activities are for personal, domestic or communal purposes.  Other types of activities can also be prescribed if the need arises.  A similar protection of native title rights exists in Canada and New Zealand.  Amendment No. 34A is simply an effective confirmation under clause 197(2).  It is basically to prevent the impairment of interest where native title rights may already be present in relation to land or waters.

   [4]     Senator Chamarette, Senate Hansard, 21 December 1993, p 5440-5441; Government support for the amendment was confirmed by Senator Evans, the then Minister for Foreign Affairs, p 5441.

4. The operation of s 211(2) was described by the High Court in Western Australia v The Commonwealth:[5]

   The usufructuary rights comprehended by sub-s (3) are, by virtue of sub-s (2)(b), rights and interests which are incidents of native title. They are, by definition (s 223(1)), rights and interests that are recognised by the common law and, by operation of s 11(1), they cannot be extinguished except in conformity with the Act. Section 211(2) removes the requirement of a “licence, permit or other instrument granted or issued … under the law” referred to in s 211(1)(b) as a legal condition upon the exercise of the native title rights specified in sub-s (3). If the affected law be a law of a State, its validity is unimpaired, but its operation is suspended in order to allow the enjoyment of the native title rights and interests which, by s 211, are to be enjoyed without the necessity of first obtaining “a licence, permit or other instrument”. Again, the effect of s 211 is not to control the exercise of State legislative power, but to exclude laws made in exercise of that power (inter alia) from affecting the freedom of native title holders to enjoy the usufructuary rights referred to in s 211.

   [5]     Western Australia v The Commonwealth (1995) 183 CLR 373 at 474 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

5. In other words, if s 211(2) operates, then the State law remains valid, but its operation is suspended in order to allow the enjoyment of the native title rights and interests contemplated by s 211(2). This suspension of the operation of the State law occurs not by direct force of s 211(2) itself, but rather through the operation of s 109 of the Constitution, which is engaged by the inconsistent operation of the Native Title Act and the State law in the particular circumstances of the relevant native title holder.[6]

   [6]     Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23 at [16] (the Court); Wanganeen v Dietman (2021) 139 SASR 170 at [148], [244] (the Court).

6. In the present case, it was and is accepted that s 72(2) of the Fisheries Management Act satisfies the conditions in ss 211(1)(b), (ba) and (c) of the Native Title Act.[7] In relation to s 211(1)(a), the appellant conceded below that the Narungga peoples (of whom the respondent is a member) have historically taken abalone, but disputed that there was sufficient evidence to establish that the Narungga peoples took abalone as part of a customary right or practice. Given the Magistrate’s findings on the evidential onus, which are not challenged, the appellant now accepts that this Court can proceed on the basis s 211(1)(a) was satisfied.[8] 

   [7]     Consistent with the decision in Karpany v Dietman (2013) 252 CLR 507 at [45]-[49] (the Court), noting in particular that the exemption in s 115 of the Fisheries Management Act was held to be sufficient to bring that Act within s 211(1)(b) of the Native Title Act.

   [8]     After the trial in this matter, the Federal Court made a determination of native title for the Narungga people in relation to an area of land encompassing the whole of the Yorke Peninsula:  Sansbury v State of South Australia [2023] FCA 196. That determination includes recognition of the Nurungga native title holders to “take, use, enjoy, share and exchange the resources of the land and waters including by fishing, hunting and gathering” (at [16(c)]), for personal, domestic and communal needs (at [17]), but only in accordance with traditional laws and customs governing the conservation and sustainable fishing of fish stocks (at [20]).

7. However, the difficulty in the present case arises by reason of the matters required to be addressed by ss 211(2)(a) and (b). On the Magistrate’s findings, while the prosecution did not negative these matters beyond reasonable doubt, the defendant did not establish them on the balance of probabilities. It was for this reason that the outcome on Counts 3 and 4 fell to determined according to which party carried the persuasive onus to establish those matters.

   The decision below

8. Having acknowledged that it was necessary to resolve the issue of which party carried the persuasive onus as to the operation of the native title ‘defence’ under s 211(2), the Magistrate dealt with the issue relatively succinctly.  His Honour noted that he was dealing with criminal proceedings in which the potential consequences for the respondent were serious.  He also noted the ordinary situation in criminal proceedings where, a defendant having properly raised a defence,[9] the prosecution was then required to not only prove all of the positive elements of the offence beyond reasonable doubt, but also negative any defences that had been raised to the same standard.

   [9]     That is, having discharged his evidential onus.

9. The Magistrate acknowledged the existence of numerous observations in the authorities as to who carried the persuasive onus in establishing a native title ‘defence’ in the context of a fishing offence.  His Honour referred in particular to the summary of the relevant authorities and principles in the recent decision of the Full Court in Wanganeen v Dietman,[10] a decision which treated, and left, the issue as unresolved in respect of prosecutions under the Fisheries Management Act.

   [10]   Wanganeen v Dietman (2021) 139 SASR 170.

10. The Magistrate accepted that there was no express guidance on the issue of onus in s 211 of the Native Title Act itself.  In his Honour’s view, it was appropriate to be cautious before arriving at an interpretation of s 211 that would deprive a defendant of a defence based upon the freedom to exercise fishing rights intended to be protected by that section.  Bearing in mind that those holding native title rights and interests were often under-privileged members of the community, and in the absence of any clear guidance in the authorities, or in the legislation itself, the Magistrate said that his instinct for fairness made it appropriate to proceed on the basis that the persuasive onus lay on the prosecution.  As the prosecution had not negatived the operation of s 211(2) beyond reasonable doubt, the respondent was not guilty of Counts 3 and 4.

    The issue on appeal

11. As mentioned, the issue on appeal is which party carried the persuasive onus in relation to the operation of the native title ‘defence’ in s 211(2) of the Native Title Act. 

12. There are several authorities which have addressed the issue of the onus in relation to a native title ‘defence’ in the context of fishing offences such as those provided for by the Fisheries Management Act.  However, as will be seen, none of these authorities definitively resolves the issue before this Court.  Several have included observations about the onus, but often in the context of confirming that the defendant carries the evidentiary onus or without clearly distinguishing between the evidentiary and persuasive onus.  And the observations that have been made have generally been in the context of an assumed or agreed position, rather than a conclusion based upon an analysis of the principles governing the allocation of the persuasive onus in criminal proceedings.

13. In addressing the issue on appeal, it is convenient to commence by identifying the principles governing the allocation of the persuasive onus in criminal proceedings. We will then address several of the authorities that have included observations relevant to the allocation of the persuasive onus in relation to a native title ‘defence’ in a prosecution for a fishing offence.  We will conclude by applying the principles identified in order to answer the question arising on appeal. 

14. For the reasons which follow, it will become apparent that the Magistrate erred in proceeding on the basis that the prosecution carried the persuasive onus, requiring it to negative the operation of s 211(2) beyond reasonable doubt.  Rather, the Magistrate ought to have proceeded upon the basis that s 211(2) operated not as a defence to an alleged offence, but as an exception to that offence.  Accordingly, the respondent carried the persuasive onus, and was required to establish the conditions for the operation of s 211(2) on the balance of probabilities.

    Principles governing the allocation of the persuasive onus

15. As the Full Court explained in Wanganeen v Dietman,[11] the incidence (and standard) of the persuasive onus varies between civil and criminal proceedings.  In both cases, the rules about the incidence of the onus were developed by the common law.

    [11]   Wanganeen v Dietman (2021) 139 SASR 170 at [214] (the Court).

16. In criminal proceedings, the general rule is as stated by the House of Lords in Woolmington v Director of Public Prosecutions (Woolmington),[12] namely that the persuasive onus lies on the prosecution beyond reasonable doubt to prove all elements of an offence and to disprove all defences properly raised on the evidence (that is, to disprove all defences in respect of which the defendant has discharged his evidentiary onus).  As their Lordships also explained, the general rule is subject to two exceptions: the defence of insanity and any statutory exceptions.

    [12]   Woolmington v Director of Public Prosecutions [1935] AC 462 at 481-482 (Viscount Sankey LC, Lord Hewatt CJ, Lord Tomlin and Lord Wright agreeing).

17. As to the evidentiary onus that arises in respect of defences, the Full Court addressed what is necessary to discharge this onus in Dudley v Department of Primary Industries and Regions South Australia:[13]

    In terms of what is required for a defendant to discharge the evidential burden, it requires that the defendant adduce (or point to)[14] sufficient evidence to raise the defence; that is, credible evidence capable of establishing the defence as a reasonable possibility.[15] The determination of whether a defendant has discharged his or her evidential burden thus requires some consideration of not only the nature and quality of the evidence said to raise the defence, but also of the particular factual and legal requirements of the defence.  The evidence must be capable of establishing each of the requirements of the defence.

    [13]   Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23 at [73] (the Court).

    [14]   Allowing for the fact that the prosecution evidence may be sufficient to discharge a defendant’s evidential burden.

    [15]   He Kaw Teh v The Queen (1985) 157 CLR 523 at 534-535; Jayasena v R [1970] AC 618 at 623-624; R v Zecevic [1986] VR 797 at 802; R v Youssef (1990) 50 A Crim R 1 at 3.

18. Once this evidentiary burden has been discharged, then the prosecution carries the persuasive onus to exclude or negative the defence beyond reasonable doubt.

19. It is the second of the two exceptions to the general rule in Woolmington that is relevant in the present case.  One manifestation of that exception is where a statute identifies what may be described as an exception or proviso to a criminal offence rather than a defence to that offence.  The proviso or exception may, through the manner in which it is expressed, or its subject matter, disclose a legislative intention to impose a persuasive onus on the defendant to establish the condition(s) for the operation of that exception or proviso.

20. In Vines v Djordjevitch,[16] the High Court addressed the circumstances in which the party seeking to rely upon a statute proviso or exception will carry the persuasive onus:[17]

    But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies.  When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions.  Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision.  In other words it may embody the principle which the legislature seeks to apply generally.  On the other hand, it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide some special ground of excuse, justification or exculpation depending upon new or additional facts.  In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding that right.  For such a purpose the use of a proviso is natural.  But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter …

    [16]   Vines v Djordjevitch (1955) 91 CLR 512.

    [17]   Vines v Djordjevitch (1955) 91 CLR 512 at 519-520 (the Court).

21. Whilst these observations were made in the context of civil proceedings, their applicability to criminal proceedings has been confirmed by the High Court.  As Brennan, Dawson and Gaudron JJ said in Director of Public Prosecutions v United Telecasters Sydney Ltd:[18]

    The rule laid down in Woolmington v Director of Public Prosecutions, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be ‘subject to … the defence of insanity and subject also to any statutory exception.’  It is made clear in Reg v Edwards and Reg v Hunt that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused … but extend to cases in which an intention to do so is necessarily implied.  Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it.  That burden may, of course, be discharged upon the balance of probabilities.  Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form.  The Court of Appeal in Reg v Edwards, viewed the statutory exceptions as limited to:

    ‘offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.’

    In Reg v Hunt, even this formulation was said by the House of Lords not to be exhaustive.  Each case must turn upon the construction of the particular enactment.

    [18]   Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 600-601 (citations omitted).

1. Similarly, in Chugg v Pacific Dunlop Ltd,[19] which also involved criminal proceedings for contravention of a statutory offence, Dawson, Toohey and Gaudron JJ (with whom Brennan and Deane JJ generally agreed) said:[20]

   For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an ‘exception’), which serves to take a person outside the operation of a general rule.  See Vines v Djordjevitch.  The distinction does not depend on the rules of formal logic: Dowling v Bowie.  Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction.  Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’: Director of Public Prosecutions v United Telecasters Sydney Ltd.  The intention may be discerned from express words or by implication.  See Reg v Edwards and Reg v Hunt.

   [19]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.

   [20]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257 (citations omitted).

2. After referring to s 168 of the Magistrates (Summary Proceedings) Act 1975 (Vic), being a Victorian equivalent of s 56 of the Criminal Procedure Act 1921 (SA) (see below), their Honours made the following further observations of relevance in determining whether a particular matter is to be construed as an element of an offence or an exception to that offence:[21]

   Section 168 of the Magistrates (Summary Proceedings) Act and like legislative provisions leave the question whether the matter in issue is an exception to be answered by the ordinary process of statutory construction. … And, despite the language of s 168 and like legislative provisions, if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.

   Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined ‘upon considerations of substance and not of form’: Dowling v Bowie.  And, of course, the necessity to have regard to substance and not merely formal considerations is emphasised in the words of s 168(1) of the Magistrates (Summary Proceedings) Act and like legislative provisions which make it clear that a matter may be classified as a statutory exception ‘whether it does or does not accompany the description of the offence’.

   One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. … Such is ordinarily the case where, in the terms used in Reg v Edwards, there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’.  See Reg v Hunt, where Lord Griffiths considered the statement from Reg v Edwards ‘an excellent guide to construction’.  If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.

   [21]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258-259 (citations omitted).

3. As foreshadowed, in South Australia, the common law position that a defendant carries the persuasive onus in respect of matters of exception is now reflected in s 56 of the Criminal Procedure Act:[22]

   [22]   See, for example, Czerwinski v Hayes (1987) 47 SASR 44 at 45 (King CJ), 49-50 (Prior J), 60-61 (Olsson J).

   56—Exceptions or exemptions need not be specified or disproved by informant

   (1)No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the information.

   (2)Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the information, no proof in relation to it shall be required on the part of the informant.

4. However, as mentioned in the above extract from the reasons of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd, the issue of whether the relevant matter is an element of the offence, or a matter of exception addressed by s 56, remains to be determined in accordance with the principles of statutory construction outlined above.

   Authorities addressing the onus in relation to a native title ‘defence’

5. As the Magistrate acknowledged, there are several authorities that have addressed the issue of the onus in relation to a native title ‘defence’ in the context of fishing offences such as those provided for by the Fisheries Management Act.

6. In Mason v Tritton,[23] the defendant sought to rely upon a common law native title defence to alleged fishing offences.  The New South Wales Court of Appeal upheld the Magistrate’s decision that the defence failed on the basis that the defendant failed to adduce evidence that he was exercising a traditional fishing right.  Each of their Honours proceeded on the basis that defendant bore an onus in relation to that defence.[24]  However, their Honours did so without any discussion of the principles governing the allocation of the persuasive onus.  Further, whilst Kirby P’s reasons suggest that he was only addressing the evidentiary onus (apparently assuming that the persuasive onus lay on the prosecution), Gleeson CJ and Priestley JA did not make it clear whether the onus on the defendant was an evidentiary or persuasive onus.

   [23]   Mason v Tritton (1994) 34 NSWLR 572.

   [24]   Mason v Tritton (1994) 34 NSWLR 572 at 574 (Gleeson CJ), 590 (Kirby P), 598, 601 and 604 (Priestley JA).

7. Derschaw v Sutton[25] was also concerned with a common law native title defence.  Franklyn J (with whom Murray J agreed) approached the matter on the basis that the defendant bore an evidentiary onus but that, in accordance with the rule in Woolmington, if the defendant had adduced sufficient evidence to discharge that onus, then the persuasive onus would have shifted to the prosecution to negative the defence.[26]  His Honour upheld the decision below to the effect that the defendant had failed to discharge his evidential onus, with the result that the defence failed.  In dissent, Wallwork J, while apparently taking the same view as to onus, took a different view as to the sufficiency of the evidence to discharge the defendant’s evidentiary onus.[27]

   [25]   Derschaw v Sutton (1996) 17 WAR 419.

   [26]   Derschaw v Sutton (1996) 17 WAR 419 at 431 (Franklyn J, Murray J agreeing).

   [27]   Derschaw v Sutton (1996) 17 WAR 419 at 445 (Wallwork J).

8. In Dillon v Davies,[28] the defendant was convicted of taking undersized abalone in breach of the Sea Fisheries Regulations 1962 (Tas). At first instance, the Magistrate rejected the defendant’s argument that, in taking the abalone, he was exercising native title rights or interests under s 211 of the Native Title Act.  In upholding the Magistrate’s decision, Underwood J agreed with her Honour’s approach; namely, that whilst an evidentiary onus lay on the defendant, once that onus was discharged, the persuasive onus lay on the prosecution to establish the defendant’s guilt beyond reasonable doubt.[29]  However, once again, this was a view expressed without any reference to the principles governing the allocation of the persuasive onus, and hence without any consideration of whether s 211 operated as an exception in respect of which the defendant bore the persuasive onus.

   [28]   Dillon v Davies (1998) 8 Tas R 229.

   [29]   Dillon v Davies (1998) 8 Tas R 229 at 234 (Underwood J).

9. The same issue arose in Dudley v Department of Primary Industries and Regions South Australia[30] in the context of offending contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA). The Full Court upheld the decisions below convicting the defendants of various fishing offences. In reasons of the Court, their Honours (Bampton, Lovell and Doyle JJ) did so on the basis that the defendant bore the evidentiary onus in respect of the native title ‘defence’ sought to be relied upon, and had failed to discharge that onus.[31]  Whilst their Honours made several references to the defendant bearing the evidentiary onus, and the prosecution bearing the legal or persuasive onus in the event the defendant discharged his evidentiary onus, these were statements made in a context where this reflected common ground between the parties.[32] There was no argument made, or considered, to the effect that s 211 operated by way of exception to the offences in the Fisheries Management Act, with the result that the defendant bore the persuasive onus.

   [30]   Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23.

   [31]   Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23 at [71]-[73], [121], [126] (Bampton, Lovell and Doyle JJ).

   [32]   Dudley v Department of Primary Industries and Regions South Australia [2018] SASCFC 23 at [71] (Bampton, Lovell and Doyle JJ).

10. Wanganeen v Dietman[33] is another decision of the Full Court addressing the operation of a native title defence under s 211 of the Native Title Act in the context of allegations of offending contrary to the offence provisions of the Fisheries Management Act.  Because the appeal in that case sought to challenge various aspects of the earlier decision in Dudley v Department of Primary Industries and Regions South Australia, the Court sat a bench of five.

    [33]   Wanganeen v Dietman (2021) 139 SASR 170.

11. At trial, the prosecution had conceded that it bore the persuasive onus if the defendants discharged their evidential onus in respect of the native title defence.[34]  However, on appeal the prosecution contended that, on an application of the general principles governing the allocation of the onus of proof and the proper construction of s 211, the persuasive onus lay on the defendants on the balance of probabilities.[35]

    [34]   Wanganeen v Dietman (2021) 139 SASR 170 at [79] (the Court).

    [35]   Wanganeen v Dietman (2021) 139 SASR 170 at [195] (the Court).

12. Having already determined that the appeal must be allowed on other grounds, and the matter remitted to the Magistrates Court for a fresh trial, the Court (Kourakis CJ, Kelly, Blue, Stanley and Doyle JJ) said that it was not necessary for it to determine the issue; that the issue had only arisen during the hearing of the appeal and the Court did not have the benefit of full submissions; and that the issue should be left to be determined in an appropriate case when it necessarily arises and after full argument.  However, the Court considered it appropriate to “identify the issue and the parties’ contentions for the benefit of the Magistrate who hears the fresh trial.”[36]

    [36]   Wanganeen v Dietman (2021) 139 SASR 170 at [212] (the Court).

13. In the paragraphs that followed, the Court summarised the general principles governing the allocation of the persuasive onus in a case such as the present in similar terms to the summary earlier in these reasons.[37] In summarising the arguments of the parties in that case, the Court noted that it was common ground that s 211 did not expressly address the question of onus. The appellants (defendants) argued that s 211 was a defence to (or negative element of) the offences under the Fisheries Management Act and that, in accordance with the general rule in Woolmington, the prosecution bore the persuasive onus beyond reasonable doubt.  The appellants drew support for their position from the reasons of Kirby J in Mason v Tritton, Franklyn J (Murray J agreeing) in Derschaw v Sutton and Underwood J in Dillon v Davies.[38]

    [37]   Wanganeen v Dietman (2021) 139 SASR 170 at [214]-[230] (the Court).

    [38]   Wanganeen v Dietman (2021) 139 SASR 170 at [231], [243] (the Court).

14. The respondent, however, argued that s 211 of the Native Title Act operated as an exception to the general statement of the offences in the Fisheries Management Act, and hence as an exception to the general rule in Woolmington. In summarising the respondent’s argument, the Court noted the support he sought to draw from what was described as a general principle that a party who relies upon the operation of a superior statute to exclude the operation of an inferior statute (for example, through the operation of s 109 of the Constitution) carries the onus in respect of that exclusion.[39]  Reference was also made to the special principles that may apply in cases involving the determination of so-called constitutional facts.[40]

    [39]   Wanganeen v Dietman (2021) 139 SASR 170 at [233]-[236] (the Court).

    [40]   Wanganeen v Dietman (2021) 139 SASR 170 at [237]-[242] (the Court).

15. However, as mentioned, after summarising the parties’ arguments, the Court declined to express any view as to the appropriate resolution of the issue of where the persuasive onus lay.

16. Before turning to resolve this issue, it is appropriate to conclude our review of the authorities by mentioning two further decisions.

17. The first is the decision of the Queensland Court of Appeal in Stevenson v Yasso.[41] It is a useful decision because it involves a consideration of the principles governing the allocation of the persuasive onus in a case involving a native title ‘defence’ to a fishing offence, albeit in circumstances where that defence arose under the fisheries legislation itself rather than s 211 of the Native Title Act.

    [41]   Stevenson v Yasso [2006] 2 Qd R 150.

18. The defendant in that case was charged with an offence under s 84(1) of the Fisheries Act 1994 (Qld), which provided that a person “must not unlawfully … possess fishing apparatus.” The defendant sought to rely upon a native title ‘defence’ arising under s 14(1) of the Fisheries Act, which provided that “[a]n Aborigine may take, use or keep fisheries resources … under Aboriginal tradition”. “Aboriginal tradition” was defined in s 36 of the Acts Interpretation Act 1954 (Qld) to mean:

    … the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.

19. By majority (McMurdo P and Fryberg J, McPherson JA dissenting), the Court allowed the appeal, and restored the order of a magistrate dismissing the complaint alleging an offence against s 84(1). Their Honours did so on the basis of the operation of s 14(1).

20. Each of their Honours addressed the issue of where the persuasive onus lay in relation to the operation of that section.  McPherson JA and Fryberg J held that the defendant bore the persuasive onus on the balance of probabilities.  McMurdo P, in dissent on this issue, held that whilst the defendant bore an evidentiary onus, once that had been discharged by the defendant, the prosecution bore the persuasive onus beyond reasonable doubt.

21. McPherson JA commenced his analysis of the issue by referring to the exception to the general rule in Woolmington set out in cases such as Vines v Djordjevitch,[42] R v Edwards,[43] R v Hunt[44] and Director of Public Prosecutions v United Telecasters Sydney Ltd.[45] His Honour explained that s 14(1) provided that an Aborigine may take, use or keep fisheries resources under Aboriginal tradition, and “thus operates as an exception in favour of a particular class of people in catching fish” and attracts the qualification to the general rule in Woolmington.[46] After emphasising that the question was one turning upon the construction of the particular enactment,[47] his Honour explained:[48]

    Approached in this way, I do not doubt that the burden of proving on the balance of probabilities that in taking fish, Mr Yasso was an Aborigine acting under Aboriginal tradition rested on him and not on the complainant.  He was a person of a specified class claiming an exemption from the provisions of the Fisheries Act and Regulation because of a particular privilege bestowed by the Act which created an exception in his favour.  It is right to add that, as was recognised in R v Hunt [1987] AC 352, at 374, it may be relevant, if all else fails, to consider the relative difficulty that the respective parties would encounter in discharging the burden of proof. Proving that someone like Mr Yasso is not an Aborigine would be almost impossible for the prosecution in a case of this kind, to say nothing of proving the particular tradition under which he claimed the right to take fish.

    [42]   Vines v Djordjevitch (1955) 91 CLR 512 at 519-520.

    [43]   R v Edwards [1975] QB 27 at 40 (Lawton LJ, delivering the judgment of the Court of Appeal).

    [44]   R v Hunt [1987] AC 352 at 375 (Lord Griffith).

    [45]   Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 600-601.

    [46]   Stevenson v Yasso [2006] 2 Qd R 150 at [95] (McPherson JA).

    [47]   Stevenson v Yasso [2006] 2 Qd R 150 at [96] (McPherson JA).

    [48]   Stevenson v Yasso [2006] 2 Qd R 150 at [97] (McPherson JA).

22. Having concluded that the defendant bore the persuasive onus to establish the operation of s 14(1) on the balance of probabilities, his Honour held that the defendant had failed to discharge that onus.[49]

    [49]   Stevenson v Yasso [2006] 2 Qd R 150 at [97] (McPherson JA).

23. Fryberg J commenced his analysis of who bore the persuasive onus by saying that he approached the issue by reference to the statement of the relevant principles in Chugg v Pacific Dunlop Ltd.[50] His Honour then set out his reasons for concluding that the operation of s 14(1) of the Fisheries Act fell within an exception to the general rule in Woolmington, with the result that the defendant bore the persuasive onus:[51]

    I gain no assistance from the form of the statute.  Section 14 is not expressed either as an exception to s 84 or as a requirement the negativing of which forms part of the general statement of the general rule embodied in s 84.  Logically it might be either.  In substance, as I have already found,[52] its effect is to exclude the operation of s 84 on conduct involving the exercise of rights conferred by the section.  Its subject matter is quite different from that of s 84.  Its effect is not limited to excluding the operation of s 84 but extends to exclude the operation of other sections.  It is located in a part of the Act remote from s 84.  As to ease of proof of its elements, I agree with McPherson JA that it would ordinarily be much easier for a person to prove that he was an aborigine or Torres Strait Islander within the meaning of the statute than for his opponent to prove that he was not.  I also think that ordinarily it would be much easier to prove the existence of a particular aboriginal tradition or island custom than to prove the non-existence of any such tradition or custom.  In so saying I take into account the cost of strictly proving the existence of a custom and the paucity of resources likely to be available to a defendant in a prosecution under the Act, but I do not think that factor can determine the outcome.

    I think there is some analogy to be drawn between the present case and the case of Madsen v Western Interstate Pty Ltd.[53] In that case the Full Court held that a defendant accused of a breach of the state transport laws bore the onus of proving the facts necessary to engage the operation of s 92 of the Constitution if he wished to rely upon that section. Likewise, in Horne v Tweed River Transport Pty Ltd, Gibbs J, with whom Hanger and Stable JJ agreed, said:

    ‘If the respondent’s use of the vehicle for the carriage of the goods was in the course of or for the purpose of interstate trade, the respondent would have committed no offence for, because of s 2 of the State Transport Act and s 92 of the Constitution, s 49 would not apply. The respondent bore the onus of proving the facts necessary to attract the protection of s 92, either directly or by way of s 2 of the State Transport Act (Madsen v Western Interstate Pty Ltd; Horne v Perry; Madsen v Tweed River Transport Pty Ltd and see also Colber v Tocumwal Trading Co Pty Ltd; Day v Hunter and Ridland v Dyson).[54]  The onus of course was to be discharged on the balance of probabilities.’[55]

    All of these considerations, and particularly the question of ease of proof, lead me to agree with McPherson JA that Mr Yasso bore the onus of proving all the elements of s 14 on the balance of probabilities.

    [50]   Stevenson v Yasso [2006] 2 Qd R 150 at [148] (Fryberg J), referring to the passages from Chugg v Pacific Dunlop (1990) 170 CLR 249 at 257-259 extracted earlier in these reasons.

    [51]   Stevenson v Yasso [2006] 2 Qd R 150 at [149]-[151] (Fryberg J).

    [52]   Paragraph [124] [in which his Honour said that s 14 “confers certain rights (or privileges or liberties or immunities – whatever they may be called) upon Aborigines and Torres Strait Islanders.  By implication it excludes the application of the Act to conduct involving the exercise of those rights.”]

    [53] [1963] Qd R 434.

    [54]   Citations omitted.

    [55]   (1967) 61 QJPR 114 at 117.  I acknowledge that in the later decision of Allied Interstate (Qld) Pty Ltd v Barnes, the High Court expressly left the question open.

1. His Honour went on to find that the defendant had discharged the onus that he bore; that the proper finding was that the defendant took the fish under Aboriginal tradition within the meaning of s 14 of the Act.[56]

   [56]   Stevenson v Yasso [2006] 2 Qd R 150 at [152] (Fryberg J).

2. McMurdo P reached a different conclusion as to the onus.  Her Honour explained:[57]

   McPherson JA and Fryberg J consider that the legislature intended to place the burden on Mr Yasso of proving on the balance of probabilities that he was an Aborigine acting under Aboriginal tradition.  I am not persuaded of that.  Mr Yasso was liable, if convicted of the offence charged under the Act, to a penalty of 300 penalty units enforceable under the State Penalties Enforcement Act 1999 with the ultimate sanction of imprisonment.  The burden of proving the guilt of an accused person, whether charged summarily or on indictment, is on the prosecution beyond reasonable doubt but for the defence of insanity and statutory exceptions: Woolmington v Director of Public Prosecutions.  There is nothing in the Act directly stating that the legislature intended to place the onus of proof on a person relying on s 14 of the Act.  But the statutory exceptions referred to in Woolmington are not confined to express legislative statements:  see Director of Public Prosecutions v United Telecasters Sydney Ltd.  Whether the onus of proof shifts to a defendant will depend upon the construction of the statute:  Director of Public Prosecutions v United Telecasters Sydney Ltd; R v Hunt. There is nothing in the Explanatory Notes referred to earlier in these reasons to suggest that the legislature intended the onus of establishing reliance on s 14(1) to be placed upon a defendant. In Hunt Lord Griffiths, with whom Lord Keith of Kinkel and Lord Mackay of Clashfern agreed and Lord Ackner substantially agreed, said that any analysis of the relevant cases showed that those where courts have held that the burden lies on a defendant are cases where the burden can be easily discharged, such as where it is a simply matter for a defendant to show that he had a relevant licence at the time of the charged offence.

   [57]   Stevenson v Yasso [2006] 2 Qd R 150 at [43] (McMurdo P) (omitting citations).

3. McMurdo P then referred to s 76 of the Justices Act 1886 (Qld), being a Queensland equivalent of s 56 of the Criminal Procedure Act 1921 (SA), before continuing:[58]

   This legislative provision seems to do no more than state the position at common law and is of no real assistance in determining the onus and burden of proof in this case.  Clearly, the many matters in the Act and Regulation which are plainly exceptions, exemptions or excuses to the offences contained in a different subsection of the same section require proof by the defendant relying upon them on the balance of probabilities …

   The determination of the issue of whether a defendant is an Aborigine or Torres Strait Islander acting under Aboriginal tradition or Island custom can ordinarily be expected to be much more complex than issues of whether a defendant has a relevant licence, authority, is complying with a management plan or has a reasonable excuse for what would otherwise constitute an offence.  In my view s 14 when considered in the scheme of the Act does not amount to an exemption, exception, proviso or condition to an offence under the Act disclosing a legislative intention to impose upon a defendant the onus of bringing the defendant within it on the balance of probabilities.  The sections of the Act and the Regulation creating offences are all successive to s 14.  Section 14 has the effect that the Act operates in a different way in respect of Aborigines and Torres Strait Islanders taking, using or keeping fisheries resources under Aboriginal tradition or Island custom.  An element of the offence with which Mr Yasso was charged which must be proved beyond reasonable doubt is that he committed the offence unlawfully. Once he establishes some evidence of the pertinent matters contained in s 14(1) (subject to s 14(2) and (3)) it is for the prosecution to negate those matters beyond reasonable doubt to establish the element of unlawfulness. …

   [58]   Stevenson v Yasso [2006] 2 Qd R 150 at [45]-[46] (McMurdo P).

4. Having expressed the (dissenting) view that the prosecution bore the persuasive onus, McMurdo P went on to find that the outcome of the appeal did not turn on the issue of onus. Her Honour was satisfied that there was evidence of the matters required by s 14(1) such that even if the defendant did bear a persuasive onus, he discharged that onus.[59]

   [59]   Stevenson v Yasso [2006] 2 Qd R 150 at [50] (McMurdo P).

5. Finally, we mention for completeness the recent decision of Buscombe DCJ in Carriage v NSW Department of Planning, Industry & Environment[60] relied upon by the respondent.  The defendant in that case was convicted of six offences in contravention of the Fisheries Management Act 1994 (NSW) and the regulations under that Act. On appeal, the defendant challenged, inter alia, the Magistrate’s rejection of his reliance upon a native title ‘defence’ under s 211 of the Native Title Act.  In considering the issue of where the onus lay in respect of the operation of s 211, his Honour undertook a review of the authorities on that issue,[61] before concluding that an evidentiary onus lay on the defendant, with the prosecution bearing the persuasive onus in the event that the defendant discharged his onus.[62]

   [60]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283.

   [61]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283 at [190]-[224] (being the authorities mentioned in these reasons).

   [62]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283 at [225], [238]-[239] (Buscombe DCJ).

6. His Honour’s reasons for concluding that the persuasive onus lay on the prosecution were as follows:[63]

   My review of the relevant case law concerning this issue which I have set out in this judgment, much of which consists of decisions of superior interstate courts, shows that those courts have held that there is an onus on the defendants in criminal prosecutions who seek to call in aid s 211(2) of the NTA, and it is in the nature of an evidentiary onus.  No superior court has held that a defendant who seeks to rely upon s 211(2) of the NTA to suspend the operation of a State regulatory scheme from that defendant’s conduct, has the persuasive onus on the balance of probabilities.

   …

   The judgments of interstate intermediate appellate courts, while arguably, not strictly binding on me, are clearly persuasive and should not be followed by me only when I am satisfied they are clearly wrong.  In this instance, I am not so satisfied. …

   I do not accept the Respondent’s submissions, to the extent that the submissions rely upon the principles discussed by the High Court in Chugg, for the following reasons.  Those submissions, in my opinion, overlook the fact that ultimately, the determination of where the onus lies, is a matter of statutory construction of the provision under consideration.  I referred earlier to the fact that the NTA has a beneficial purpose, a purpose which is to benefit Aboriginal and Torres Strait Islander peoples.  There are authoritative statements which I referred to earlier, that indicate that courts should be alive to construing the NTA in a way so as to give effect to the beneficial purpose of the legislation, even if that involves giving a strained interpretation to a provision.

   I also do not accept that ‘it can be expected that a party relying upon the application of s 211 would be the party best placed to assess the critical evidence necessary to establish native title, and the appropriate exercise of that right consistent with traditional laws or customs.’  That submission ignores that in criminal proceedings where s 211(2) of the NTA is raised, the prosecuting authority will be an arm of the executive government of either the Commonwealth, a State or a Territory.  That the relevant executive government, through its agencies, will almost invariably have far greater resources at its disposal than the individual Aboriginal or Torres Strait Islander person who is being prosecuted.  The submissions also fail to acknowledge that as a consequence of the conduct of various executive governments over time, including the Imperial and Colonial administrations that governed Australia prior to Federation, the ability of an individual Aboriginal or Torres Strait Islander to establish that their conduct involved an exercise or the enjoyment of a native title, right or interest, has been made very difficult.  It cannot be doubted that the Aboriginal and Torres Strait Islander culture is essentially an oral one.  Nor can it really be doubted that up until the first Land Rights legislation in 1976 and probably until the decision of the High Court in Mabo No 2, Aboriginal and Torres Strait Islander peoples, would have had little to no expectation that State and Federal Courts would acknowledge or enforce native title rights or interests.  In such circumstances, it cannot be said that an Aboriginal or Torres Strait Islander person would be the party best placed to assess the critical evidence necessary to establish native title.

   [63]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283 at [226]-[230] (Buscombe DCJ).

7. Buscombe DCJ went on to hold that the even though the defendant bore only an evidential onus, he had not discharged that onus.[64]

   [64]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283 at [240] (Buscombe DCJ).

   Application of the relevant principles

8. In determining which party bears the persuasive onus of establishing the conditions for the operation of s 211(2) of the Native Title Act in a prosecution under the Fisheries Management Act, the starting point is the general rule in Woolmington: namely, that the persuasive onus lies on the prosecution to prove beyond reasonable doubt all elements of an offence and to disprove all defences properly raised on the evidence (that is, to disprove all defences in respect of which the defendant has discharged his evidentiary onus).

9. In considering whether proof of a particular matter falls within an exception to this general rule, such that the defendant bears the persuasive onus, it is appropriate to apply the principles summarised in the passages from the reasons of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd[65] extracted earlier in these reasons.  The issue is whether the matter or provision relied upon forms part of the statement of the general rule (whether as a positive or negative element of the relevant offence), or is an answer by way of an exception which serves to take a person outside the operation of that general rule.  The issue is one of statutory construction, with Parliament’s intention to be discerned from the express words used in the relevant provision, or by implication.  While the form of the legislative provision is relevant, the focus is on the substance of its operation.

   [65]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257-259 (Dawson, Toohey and Gaudron JJ).

10. As mentioned, s 56 of the Criminal Procedure Act is a statutory reflection of this exception to the general rule in Woolmington.  But it leaves the issue of whether a particular matter or provision falls within the exception to be determined by reference to the (common law) principles of statutory construction to which we have referred.

11. When considering the application of s 211(2) of the Native Title Act, the Court exercises federal jurisdiction. However, by reason of ss 79 and 80 of the Judiciary Act 1903 (Cth), and in the absence of any Commonwealth law that provides otherwise, both s 56 of the Criminal Procedure Act and the common law principles of statutory construction apply in determining where the persuasive onus lies.

12. Turning to the issue of statutory construction that must be resolved, s 211(2) of the Native Title Act provides for a specified class of person (native title holders) to carry on certain activities (including hunting, fishing and gathering) in exercise of their native title rights and interests free from any prohibition or restriction that exists under a Commonwealth, State or Territory law.

13. Section 211(2) is expressed in relatively general terms, and is not expressly directed or confined in operation to criminal proceedings.  Indeed, it is not expressly directed to any particular proceedings at all.  It is expressed as operating to alter the application of regulatory regimes governing activities that might involve the exercise of native title rights and interests.  The section might be invoked in civil proceedings, for example, seeking declaratory relief as to its operation in a particular regulatory setting.  However, as it is expressed in terms that free a native title holder from a prohibition or restriction under another law, it is plainly apt to operate in criminal proceedings, such as the present, alleging a contravention of a prohibition or restriction upon an activity such as fishing under that other law.

14. It is to be accepted that s 211(2) does not expressly address the issue of the persuasive onus in the event that it is invoked in criminal proceedings.[66]  However, as the authorities confirm, the exception to the general rule in Woolmington (as reflected in s 56 of the Criminal Procedure Act) is not confined to provisions which expressly cast the persuasive onus on the defendant.  It extends to cases where there is an implicit legislative intention that the relevant provision operate by way of exception to the general statement of the relevant offence such that the defendant bears the persuasive onus.

    [66]   Wanganeen v Dietman (2021) 139 SASR 170 at [231] (the Court).

15. In considering whether s 211(2) of the Native Title Act was intended to operate by way of exception to a general rule, rather than forming a part of the statement of a general rule, it is relevant that it appears separately from the statement of the general rule(s) in the offence provisions in the Fisheries Management Act; indeed, it appears in an entirely separate piece of legislation, enacted by a different Parliament.

16. This position may be contrasted with the provision containing the ‘defence’ in Stevenson v Yasso (s 14(1) of the Fisheries Act), which existed within the same legislation as the offence provision (s 84(1) of the Fisheries Act), albeit as a provision appearing in the early general provisions of the relevant Act rather than alongside the offence provisions. It appears that McPherson JA and Fryberg J considered that this separate location of the provision, even though within the same Act, was a textual, or perhaps contextual, consideration in favour of the construction of s 14(1) as an exception to s 84(1), rather than as a defence to, or element of, the offence provided for in s 84(1). It is also significant that, in taking a different view, McMurdo P emphasised the requirement in s 84(1) that the defendant not “unlawfully” possess fishing apparatus. In her Honour’s view, the matters provided for in s 14(1) were relevant to whether the defendant was acting unlawfully, thus providing a textual link between s 14(1) and the statement of the offence. Even accepting the validity of this link, a matter not addressed in the reasons of McPherson JA or Fryberg J, there is no equivalent link in the present case.

17. It is also relevant that s 211(2) is broader in its terms and subject matter than the offence provisions in the Fisheries Management Act.  It extends beyond fishing to provide for the exercise of native title rights and interests more generally.  It is expressed as providing for the exercise of those rights free from the constraints of any other law, rather than as a defence or negative element of any particular offence provision(s).

18. The above are strong textual and contextual indications that s 211(2) was intended to operate by way of exception to, rather than as part of the statement of, the general rules provided for in the offence provisions of the Fisheries Management Act. 

19. The terms of s 211(2) also suggest a legislative intention that it operate by way of an exception rather than forming part of the statement of a general rule. The terms of ss 211(1) and 211(2) are expressly predicated upon the existence of some general rule (a prohibition or restriction) which exists separately in some other law (here, a State law). Further, s 211(2) fits the description of a provision that exempts compliance with a prohibition or restriction under that other law “in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities”.[67]  It fits that description both as a matter of form and substance.  It is a provision that applies to persons of a specified class (native title holders) in specified circumstances (where they are exercising native title rights and interests for the purpose of satisfying their personal, domestic or non-commercial communal needs).

    [67]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258 (Dawson, Toohey and Gaudron JJ), mentioning the reference to this as an “excellent guide to construction” from R v Edwards [1975] QB 27 at 39-40 (Lord Widgery CJ, Lawton LJ and Ashworth J) in R v Hunt [1987] AC 352 at 375 (Lord Griffiths).

20. In Chugg v Pacific Dunlop Ltd,[68] Dawson, Toohey and Gaudron JJ said that if the matter is one peculiarly within the knowledge of the defendant, then this may provide “a strong indication” that it is a matter of exception upon which the defendant bears the persuasive onus.  Put another way, it may be relevant to consider which party might more easily or naturally bear the persuasive onus of proving the matters required by the relevant provision.  This invites a focus upon which party is likely to be in a better position (by reason of knowledge or otherwise) to prove the relevant matters; that is, a focus upon the likely ability or capacity of the respective parties to access and adduce the relevant evidence.  This may include, or at least overlap with, consideration of the ‘fairness’ of imposing the task of proof upon the defendant from a resources or cost perspective; a matter relied upon by the Magistrate below and by Buscombe DCJ in Carriage v NSW Department of Planning, Industry & Environment.[69]  But that is not the focus of the inquiry.

    [68]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258-259 (Dawson, Toohey and Gaudron JJ).

    [69]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283 at [230] (Buscombe DCJ).

21. The matters required to be satisfied before s 211(2) will operate have been listed earlier in these reasons.  Importantly, and speaking generally, they include matters relating to the existence and content of the native title right relied upon, as well as matters relating to the conduct of the defendant on the relevant occasion (that is, that the defendant was exercising his native title rights, and doing so for the purpose of satisfying his personal, domestic or non-commercial communal needs).

22. In Stevenson v Yasso[70] both McPherson JA and Fryberg J emphasised the difficulties the prosecution would have in disproving the defendant’s aboriginality and the existence and content of the traditional right to fish relied upon by the defendant.  Analogous considerations apply here.  One would expect a defendant seeking to rely upon s 211(2) to have knowledge of the existence and content of the relevant native title right relied upon, as well as whether it was being exercised for the purpose of satisfying personal, domestic or non-commercial communal needs on the occasion in question.  Possessed with such knowledge, proof of these matters seems more naturally imposed upon a defendant.  It will often be no easy task for the prosecution to disprove the existence of any relevant native title right, or the existence of the prescribed purpose on the part of the defendant.

    [70]   Stevenson v Yasso [2006] 2 Qd R 150 at [97] (McPherson JA), [149]-[150] (Fryberg J).

1. It may nonetheless be accepted that proof of the existence of a relevant native title right may involve a difficult forensic task, extending to the obtaining of expert evidence.  It may thus involve a significant cost imposition upon a defendant.  Whilst the fairness of imposing this burden upon a defendant is not irrelevant, a consideration of the parties’ relative capacities to prove the matters required by s 211(2) favours its construction as an exception to be proved by the defendant.

2. It may also be accepted that, speaking generally, the Native Title Act is remedial legislation, intended to operate for the benefit of Aboriginal peoples and Torres Strait Islanders, and in particular to ensure the recognition and protection of their native title rights and interests.  That is a matter emphasised by Buscombe DCJ in Carriage v NSW Department of Planning, Industry & Environment,[71] and is readily apparent from both the Preamble to the Act, and the statement of its objects in s 3 of the Act.  Whilst this remedial or beneficial purpose is a matter that informs the construction of the legislation,[72] the Act must still be construed according to its terms. A construction of s 211(2) which, in the context of a prosecution for a fishing offence, places the persuasive onus of establishing its operation upon the defendant, is not inconsistent with the remedial or beneficial purposes of the Native Title Act.  Whilst imposing a potentially difficult and onerous forensic task upon a defendant seeking to rely upon native title rights, it does not operate to deny or defeat the existence of those rights which the Act is intended to recognise and protect.  It does not operate to impede or frustrate the purpose of the Act.[73] 

   [71]   Carriage v NSW Department of Planning, Industry & Environment [2022] NSWDC 283 at [229] (Buscombe DCJ).

   [72]   See, for example, Commonwealth of Australia v Yarmirr (2001) 208 CLR 1 at [123]-[125] (McHugh J), at [249] (Kirby J).

   [73]   Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 (Dawson, Toohey and Gaudron JJ).

3. A beneficial construction of the Native Title Act does not negate the requirement for a person claiming recognition of native title rights and interests to prove the elements of that claim.  It is well settled that an applicant for a native title determination under the Native Title Act bears the onus of proving the existence of native title rights and interests that have not been extinguished.[74]  And that is so notwithstanding recognition that some elements of the claim may no longer be susceptible of direct proof, and that it will often be difficult for claimant groups to demonstrate the content of the relevant traditional laws and customs to the requisite standard.[75]

   [74]   See, for example, Western Australia v Ward (2000) 99 FCR 316 at [114]-[117] (Beaumont and von Doussa JJ, North J agreeing).

   [75]   Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [80] (Gleeson CJ, Gummow and Hayne JJ).

4. Consistently with the above, we do not think that the general relevance to the construction task of the remedial and beneficial purposes of the Native Title Act outweighs the considerations which we have identified as otherwise supporting the construction of s 211(2) as an exception to the offence provisions of the Fisheries Management Act.

5. For the reasons given, we are satisfied that s 211(2) of the Native Title Act is properly construed as an exception to offence provisions in the Fisheries Management Act, with the defendant bearing the persuasive onus on the balance of probabilities of establishing the conditions for the operation of the native title ‘defence’ in that section.

   The constitutional context

6. As explained earlier, the issue of onus in the present case arises in a context involving the operation of s 109 of the Constitution. If the conditions for the operation of s 211(2) of the Native Title Act are established, then the State law (s 72(2)(c) of the Fisheries Management Act) remains valid but, by force of s 109 of the Constitution, its operation is suspended in order to allow the enjoyment of the native title rights and interests contemplated by s 211(2).

7. At one level, this constitutional context in which the issue of onus arises might be seen to support the appellant’s contention that the defendant bears the persuasive onus to establish the conditions for the operation of s 211(2). Support might be drawn from the notion that it is generally for the party seeking to rely on the operation of a superior statute to exclude the operation of an inferior statute (such as a Commonwealth statute prevailing over a State statute by reason of s 109 of the Constitution) to establish the conditions for that to occur.  This was a potential consideration mentioned by the Court in Wanganeen v Dietman,[76] with reference to authorities considering reliance upon s 92 of the Constitution to invalidate a State law.  Consistently with this, in Stevenson v Yasso,[77] Fryberg J drew support for his conclusion that the defendant bore the persuasive onus from an analogy with the authorities to the effect that a party seeking to invoke the protection of s 92 of the Constitution bears the onus of proving the facts necessary to attract its operation.

   [76]   Wanganeen v Dietman (2021) 139 SASR 170 at [233]-[236] (the Court).

   [77]   Stevenson v Yasso [2006] 2 Qd R 150 at [150] (Fryberg J).

8. However, we are not persuaded that much support can be drawn from the constitutional context in which s 211(2) operates in a case such as the present.  Even if it be accepted that – consistently with the general approach that the party who asserts must prove[78] – it will generally fall to a party seeking to rely upon a superior statue to establish the conditions for the operation of that statute, it nevertheless seems to us that this must be subject to any other principles governing the allocation of onus in a particular case.  In our view, in a case such as the present (involving a criminal prosecution for offending contrary to the Fisheries Management Act), it remains necessary to consider the general rule in Woolmington, and the exceptions to that rule. In our view, regardless of the precise mechanism by which s 211(2) operates (that is, regardless of the fact that it involves an application of s 109 of the Constitution triggered by an inconsistency between that section and the offence provisions of the Fisheries Management Act), it remains necessary to address whether that section is properly construed as a part of the general statement of the relevant offences or as an exception to those offences.  That is consistent with the approach taken to an analogous issue that arose in Clubb v Edwards,[79] where it was considered relevant to address this issue of construction despite the constitutional context in which the matter fell to be resolved.

   [78]   Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 717A (Kirby J).

   [79]   Clubb v Edwards (2019) 267 CLR 171 at [151]-[153] (Gageler J), [239] (Nettle J), and [347]-[348] (Gordon J).

9. That said, as these passages from Clubb v Edwards also indicate, the usual rules as to the allocation of the burden may not apply in circumstances where the conditions for the operation of the superior statute (to the exclusion of the inferior one) are in the nature of ‘constitutional facts’ rather than ‘adjudicative facts’.[80]

   [80]   Breen v Sneddon (1961) 106 CLR 406 at 411 (Dixon CJ); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [65] (McHugh J); Maloney v The Queen (2013) 252 CLR 168 at [351] (Gageler J); Re Day (2017) 91 ALJR 262 at [21] (Gordon J).

10. Whilst the conditions for the operation of s 109 of the Constitution may involve the consideration of constitutional facts, neither party to this appeal suggested that the conditions for the operation of s 211(2) of the Native Title Act were constitutional facts.  We do not think they are constitutional facts. 

11. At trial, the need to consider the conditions for the operation of s 211(2) did not arise in the context of a general challenge to the validity of the offence provisions of the Fisheries Management Act. Rather, it arose in the context of a contention that those provisions did not operate in circumstances where the defendant’s conduct attracted the operation of s 211(2) of the Native Title Act.  

12. Further, consideration of the existence of a native title right with a particular content, and of whether the defendant was exercising that right and doing so for personal, domestic or non-commercial communal needs when engaging in the impugned conduct, involves consideration of facts which are adjudicative in nature, rather than constitutional in nature. It involves consideration of matters arising between the parties, and relating to the rights and activities of the particular defendant (and the Narrunga peoples of whom he is a member), rather than facts of a more general nature and significance. At the very least, that is so in respect of the conditions in s 211(2)(a) and (b) of the Native Title Act.  As such, the ordinary rules governing the allocation of onus apply in relation to these matters, and lead to the conclusion that they were matters to be proved by the defendant on the balance of probabilities.

13. In any event, even if the conditions for the operation of s 211(2) were to be treated as constitutional facts, this would be a case in which a ‘practical’ onus to establish the conditions for the operation of s 211(2) nevertheless fell on the defendant.[81]

    [81]   Clubb v Edwards (2019) 267 CLR 171 at [153] (Gageler J), [442] (Edelman J); Maloney v The Queen (2013) 252 CLR 168 at [355] (Gageler J); Unions NSW v New South Wales [2023] HCA 4 at [31] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ).

    Conclusion

14. For the reasons set out, the defendant bore the persuasive onus in relation to the conditions necessary to establish the operation of s 211(2).  He was required to prove these matters on the balance of probabilities.  On the findings of the Magistrate, which are not challenged, he did not do so.

15. We allow the appeal and set aside the acquittals on Counts 3 and 4.  Subject to hearing from the parties as to whether we should substitute convictions on both counts, the matter must be remitted to the Magistrate for sentence.